Constitutional Topic: Presidential Inaugurations

The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Presidential Inaugurations. The
inauguration of the President is mentioned in the Constitution in Article 2, Section 1, in the 12th Amendment, and in the 20th Amendment.

The 2009 inauguration of President Barack Obama was, as were all inaugurations
before it, filled with pomp and circumstance. Everything from concerts to
speeches, parades to formal balls.

None of this, of course, is required by or dictated by the Constitution.

The Original Constitution

The original Constitution requires only one thing for an inauguration. The
incoming president must recite this oath:

I do solemnly swear that I will faithfully execute the Office of
President of the United States, and will to the best of my ability, preserve,
protect and defend the Constitution of the United States.

Since the act or "swearing" is counter to some religions, and may have no
meaning at all to someone who is irreligious, the Constitution specifically
allows the word "swear" to be replaced with the word "affirm". Of all the
inaugurations, only Franklin Pierce chose to use the word "affirm".

These 35 words are required by the Constitution before the president can
"enter on the execution of [the] office". In other words, until the oath is
taken, the president may not actually do anything that the office is normally
allowed to do.

Beyond the oath, there was no other direct reference to inauguration. By
tradition, the term of office began on March 4, and on March 4, 1797, the
first President, George Washington, gave up the seat of power and passed it on
to John Adams, beginning a tradition of peaceful transition of power the United
States has enjoyed ever since.

The 12th Amendment

The 12th Amendment, primarily written to close loopholes in the functioning
of the Electoral College, also set in
constitutional stone the date that a president's term would begin - though not
directly. It stated, instead, that if by the 4th of March, the date set by
Washington's example, the House of Representatives had been unable to decide on
a president, the vice president would act as president until such time as the
House got its act together.

The 20th Amendment

As time passed, and technology improved, it became clear that the time
between the November elections and the March inauguration was too long for the
country to wait for a new president. The 20th Amendment took effect on October
15, 1933, and shortened the first term of President Franklin Roosevelt by
several weeks (not that Roosevelt noticed, since he was elected an
unprecedented four times). Roosevelt's first term, then, began on March 4,
1933, and ended less than four years later on January 20, 1937.

The Amendment is even more specific than that, though - it not only dictated
a date for the end of one term and the start of the next, but a time, too. The
switch-over was to happen at noon on the 20th of January. Previously, the term
was considered ended at the stroke of midnight on March 3.

Problems

The Constitution still does not fully cover the topic, even with all this
history behind it. Here is a list of common questions about the
inauguration.

What is the oath of office for the Vice President of the United
States?

There is no such specific oath in the Constitution, but Article 6 does specify that all executive
officers must take an oath. In U.S. law, specifically at 5
USC 3331, the following oath is prescribed for all legislative, judicial,
and executive officers except the President:

I, (name), do solemnly swear that I will support and defend the
Constitution of the United States against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same; that I take this
obligation freely, without any mental reservation or purpose of evasion; and
that I will well and faithfully discharge the duties of the office on which I
am about to enter. So help me God.

This law also allows the use of the word "affirm" instead of "swear", if
desired.

If the President doesn't say the oath correctly, does it count?

This question arose after the inauguration of Barack Obama, because the
wording given to him by Chief Justice John Roberts, and recited back by Obama,
slightly mangled the oath. Specifically, Roberts prompted Obama to say "I will
execute the Office of President of the United States faithfully", misplacing
the word "faithfully." The sentiment was there, but the wording was wrong.

Being spoken by flawed humans, the oath has been flubbed before. In 1929,
former president and chief justice Howard Taft administered the oath to Herbert
Hoover. Taft prompted Hoover to say "preserve, maintain, and defend the
Constitution", instead of "preserve, protect, and defend the Constitution." The
gaffe passed unnoticed until a young student, who heard the inauguration on the
radio, wrote to Hoover to ask about the mistake. Hoover acknowledged the
mistake, but there is no record of the oath being readministered.

The question of whether Obama could legally execute the office was put to
rest the next day, January 21, 2009, when, out of an "abundance of caution,"
Roberts and Obama met in the White House and Roberts gave Obama the oath again,
accurately.

However, precedent would say that it does not matter. When George Washington
first became president, he was unable to take the oath until April 30, 1789.
The delay involved the time it took for members of Congress to travel to New
York City, the temporary capital. In law, though, the Congress back-dated
his presidency to March 4, 1789, which is an indication that contemporaries of
the Constitution's creation put more stock in the assumption of the office than
in the administration of the oath.

Today, to be safe, the oath is administered as close to noon on the 20th of
January as possible.

Speaking of the Chief Justice, where does it say that that person has to
administer the oath?

There is no constitutional requirement on the person administering the oath,
though when the inauguration is planned, the chief justice is tapped to
administer it. The only exception was for George Washington's first inaugural,
since there was no chief justice yet. In that case, a New York state judge did
the honors. If you look just at the Constitution, with its lack of specificity
on the issue, it could be inferred that the oath can be given to the president
by any ordinary citizen. The oath, though, is generally administered by someone
with some authority.

Notably, Lyndon Johnson's first oath of office was administered by Sarah Hughes,
a U.S. District Court judge. The image of Johnson being sworn in with a
shell-shocked Jacqueline Kennedy at his side following the death of her husband,
is a classic photo of that era. Hughes is the first and, thus far, only
woman to administer the oath to the President.

Calvin Coolidge ascended to the presidency in 1923, following the death of
Warren Harding. Coolidge was at his father's home in Plymouth, Vermont, when
word came that Vice President Coolidge was now President Coolidge. By the light
of two oil lamps, Coolidge was given the oath by his father, who was a notary
public. Because there was some outcry about the venue of the oath, in a private
residence, and the qualifications of his father to give the oath, Coolidge was
readministered the oath upon return to Washington, D.C.

Chester Arthur also took the oath in a private home following the death of
the president. Arthur took the oath in his New York City home in 1881, after
the death of James Garfield. The ceremony was private, and a public ceremony
was held two days later in Washington.

Other presidents, like Woodrow Wilson in 1917, refused to take the oath
publicly on a Sunday. Wilson, then, took the oath on Sunday, March 4, 1917, in
a private ceremony, and in a public ceremony on the 5th. Notably, this was
the inauguration for Wilson's second term, but there was concern that no one
would be president on the 4th if Wilson refused to take the oath at all.

Obama was not sworn in at exactly noon. Who was president from noon, when
George Bush stopped being president, to 12:05 or so, when Obama took the
oath?

This question is not a new one, and in fact, Chief Justice John Marshall, in
1821, wrote that when one president's term ended, the next one began without
delay. This fact was reported in the New York Times on November 16,
1916, in a report issued by the State Department in response to Woodrow
Wilson's announcement that he would not be sworn in on a Sunday. Marshall had
been asked a similar question for James Monroe, whose term would begin on
Sunday, March 4, 1821. This practice of delaying the public inauguration, when
the 20th falls on a Sunday, continues today - the last was Ronald Reagan's
second inauguration in 1985.

The letter from Marshall noted that since the term of office began on the
4th of March, the previous term was considered to be ended at the stroke of
midnight of the 3rd. Then, typically, the oath would be given to the next
president at midday on the 4th, leaving a 12 hour gap in the presidency.
Specifically, Marshall wrote that this gap was a time "during which the
executive power could not be exercised."

So, then, the gap is a time when there is a powerless president. The passage
of time marks the start of the office, but the oath marks the start of the
powers of the office.

Does the oath have to be sworn on a Bible? Could it be sworn on a copy
of the Koran?

There is no constitutional requirement that the oath be sworn on a Bible.
There is also no prohibition. So, a Bible can be used, but so could anything,
including the Koran, the Talmud, or a copy of Sports Illustrated. The point is
not where the president's hand rests when he or she takes the oath, but that
the oath be recited, and then carried out.

This having been said, reports indicate that almost all of the oaths have
been taken on a Bible. There are a few notable exceptions. John Quincy Adams
chose to place his hand on a book of laws. During Lyndon Johnson's first
inauguration, which took place aboard Air Force One following the death of
President John Kennedy, Johnson placed his hand on a Catholic missal, it being
readily available on the airplane. Finally, in Obama's second "abundance of
caution" oath, Obama only recited the oath, and placed his hand on nothing.

When Obama was given the oath, the Chief Justice asked him at the end,
"So help you God?" That's not in the Constitution - is that a problem?

Despite some erroneous news reports to the contrary, the words "So help me
God," uttered without fail following the administration of the oath, are not an
actual part of the oath. The words are, however, a part of the inauguration
tradition, dating back to George Washington. It should be noted that the
inclusion of the president's name is not mandated by the Constitution, but it
is customary to add the name following the word "I".

The inclusion of these words was the subject of a lawsuit brought to federal
court just before the 2009 inauguration. The plaintiffs argued that the words
were extra-constitutional and constituted a religious test that is strictly
forbidden in the Constitution. The suit argued that if Obama chose to say the
words it would be fine - but to be prompted to say them by Roberts amounted to
a religious test. The court, however, ruled that the phrase is an expression of
the president, and not a part of the oath itself; that it is not required and
cannot be; and that extemporaneous expressions of this kind cannot be
preemptively stopped by the courts.